Cohabitation - The Good, The Bad and The Ugly

February 20, 2003

There is no common law marriage statute in Massachusetts, so unmarried couples who live together enjoy none of the rights and protections that their married counterparts do. Unless their partnership is defined through a legal contract, the law is likely to classify them as strangers in the event that the relationship dissolves. A cohabitation agreement forces each party to carefully consider his/her intentions, obligations and expectations during the relationship and upon its demise.

Rarely do cohabitation agreements dictate conduct during the relationship, but terms valid upon its dissolution may affect the way that cohabiters control their finances, household responsibilities and assets throughout the union. For example, an agreement stating that each party will be responsible for his/her own financial support upon separation may impact one party’s willingness to stop outside employment to exclusively manage a home. It may also affect the acquisition of assets in as much as under whose name property and other possessions are acquired.

Cohabitation agreements are drafted mainly as a blueprint for dissolution of the relationship. At a time when people are emotional and potentially irrational, these agreements provide an established framework to move forward. Also covering a wide array of personal issues such as pet custody, pledges to pursue couples therapy prior to separation, who will remain in the home, or even agreements prohibiting changing the locks on the residence, cohabitation agreements open up the channels of communication for couples drafting them.

The Massachusetts Supreme Judicial Court has been recognizing and upholding such agreements with increasing regularity since 1998. Thus it is important that each party retain his/her own lawyer, eliminating the potential for one party to argue coercion by the other if the relationship terminates in the future. A well-drafted cohabitation agreement should negate the need for future litigation and ensure a smooth dissolution of a relationship that has turned disappointingly sour.

by: Michelle M. Begley, Esquire

Valley Business Outlook
February 2003